93 Decision Citation: BVA 93-19776
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 93-03 176 ) DATE
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THE ISSUE
Entitlement to VA outpatient dental treatment.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Keith W. Allen, Associate Counse
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (Board) on
appeal from a July 1991 decision of the Wichita, Kansas, Department of
Veterans Affairs (VA) Regional Office (RO), which denied the veteran's
claim for VA outpatient dental treatment. The notice of this action
was sent to the VA Medical Center (VAMC) in Leavenworth (which had
been processing the claim for dental treatment); however, there is no
record in the claims folder (which is the only folder currently before
the Board) that notification was sent to the veteran (although in his
substantive appeal he says he was notified in December 1991). The
veteran's notice of disagreement was received in October 1992. A
statement of the case was issued and the substantive appeal was
received in November 1992. The case was received and docketed at the
Board in February 1993. The veteran's representative, The American
Legion, submitted additional written argument in support of the claim
in May 1993.
The veteran had active service for greater than 30 years prior to his
retirement in March 1981.
REMAND
The veteran's claim is well grounded, meaning not inherently
implausible, within the meaning of 38 U.S.C.A. § 5107(a) (West 1991).
However, as discussed below, not all relevant facts have been properly
developed and further assistance is required to comply with the duty
to assist mandated by § 5107(a) and 38 C.F.R. §§ 3.103, 3.159 (1992).
The veteran filed a VA compensation claim for "dental problems" which
was received at the RO in Wichita, Kansas, in April 1981. On the form
he indicated he needed further dental work. The RO considered the
claim to be one for VA dental treatment, and in April 1981 reportedly
forwarded the claim to the VAMC in Leavenworth, Kansas, for
consideration of entitlement to VA outpatient dental care. However,
there is no record currently in the claims folder regarding any action
by the VAMC regarding the veteran's 1981 dental claim, and the veteran
contends that he was never given notice of any action taken on his
1981 dental claim by the VAMC.
In a January 1990 letter from the veteran to Kansas Senator Robert
Dole (which letter was forwarded to the RO in February 1990), he
requested that action be taken on his dental claim and pointed out
that he had not received notice of any action taken by the VAMC
regarding his original 1981 application. In a RO letter to the
Senator later that month, it was acknowledged that the VAMC in
Leavenworth had been sent the dental claim in 1981, and the current
request was being referred to that facility for further action.
According to a July 1991 RO statement, on VA Form 10-7131, the veteran
is not entitled to VA dental treatment, partly because his claim for
dental treatment was not timely filed; that is, the RO apparently
denied Class II outpatient dental treatment (38 C.F.R. § 17.123(b)),
on the reasoning that the veteran was discharged from service in 1981
and did not file for treatment until 1991. However, the RO has
acknowledged that the veteran first filed a claim in 1981, and the
evidence currently before us does not show that such claim was ever
adjudicated or the veteran timely notified. If the 1981 claim was
never adjudicated, it is still pending and certain Class II timeliness
conditions may be inapplicable. See Mays v. Brown, No. 90-1038 (U.S.
Vet. App. July 26, 1993). Further action on this matter is required
by the RO.
In the statement of the case, the RO also suggested that the veteran's
notice of disagreement was not timely filed. The documents currently
in the claims folder do not indicate when the veteran was notified of
the July 1991 RO decision. If the veteran was notified in December
1991, as he alleges, his October 1992 notice of disagreement would be
timely as to the 1991 decision (i.e., within the one-year time limit
of 38 U.S.C.A. § 7105(b)(1)). Further action is also required by the
RO on this subject.
Accordingly, the case is REMANDED to the RO for the following action:
1. The RO should obtain the veteran's medical
administrative records folder, dental treatment
folder, or other files, from the VAMC-
Leavenworth (or from any other indicated records
repository), containing documents showing
whether or not his 1981 claim for VA outpatient
dental treatment was ever adjudicated, the
results of any such decision, and proof that the
veteran was notified. (Note: According to
recent correspondence from the veteran, he has
worked in the medical records section of the
VAMC-Leavenworth since leaving service.)
2. If the veteran's 1981 claim for VA
outpatient dental treatment has never been
adjudicated and the veteran notified, this
should be done by the RO or VAMC. All
categories of possible eligibility, including
Class II, should be considered.
3. The RO should also obtain documentary proof
of notice to the veteran, of the 1991 decision
denying outpatient dental treatment, and based
on the date of that notice it should decide
whether the veteran's October 1992 notice of
disagreement was timely filed.
If the claim is denied, the veteran and his representative should be
issued an appropriate supplemental statement of the case and given a
reasonable opportunity to respond thereto. Then the case should be
returned to this Board for further appellate consideration.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT) STEPHEN A. JONES
L. W. TOBIN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional Member to the Section when the Section is composed of
fewer than three Members due to absence of a Member, vacancy on the
Board or inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section proceed with
the transaction of business, including the issuance of decisions,
without awaiting the assignment of a third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of Veterans
Appeals. This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1992).